Citation Nr: 9828783
Decision Date: 09/25/98 Archive Date: 10/01/98
DOCKET NO. 95-02 892 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to nonservice-connected death pension benefits
based on income.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran had active service from June 1944 to October
1945. He died in December 1993. An appeal has been taken
from an April 1994 decision by the Department of Veterans
Affairs (VA) Regional Office Muskogee, Oklahoma, that the
appellant was not entitled to improved death pension benefits
due to excess income. The case was initially before the
Board of Veterans' Appeals (Board) in October 1996 when it
was remanded for further development. The case is again
before the Board for further appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in substance, that she should be
entitled to nonservice-connected death pension benefits when
her income is reduced by the applicable portion of her
unreimbursed medical expenses. The appellant indicates she
understands that her total income is above the VA limit but
she disagrees with the amount of unreimbursed medical
expenses deducted by the VA.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the appellant is not entitled to
nonservice-connected death pension benefits due to excess
income.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the regional office to the extent possible.
2. The veteran's death occurred in December 1993.
3. In April 1994 the appellant submitted a claim for
improved death pension benefits as surviving spouse of the
veteran.
4. She indicated on the claim that her income consisted of
Social Security benefits of $749.10 per month or $8,989.20
per year plus annual interest of $417.26 for a total of
$9,406.46 per year.
5. She submitted a list of various expenses of the veteran's
last illness and burial as well as various medical expenses
for herself from December 1992 to November 1993.
6. The regional office computed the deductible expenses of
the veteran's last illness and burial to be $2,751. It was
indicated that her net countable income was $6,655.46.
7. The evidence establishes that the appellant's net
countable income as of April 1994 was in excess of $5,239.
CONCLUSION OF LAW
The appellant was not entitled to improved death pension
benefits effective in April 1994 due to excess income.
38 U.S.C.A. §§ 1503, 1541, 5107 (West 1991); 38 C.F.R.
§§ 3.23, 3.271, 3.272 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that it has found the appellant's claim to be
"well grounded" within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991); effective on and after September 1, 1989. That
is, the Board finds that she has presented a claim which is
plausible. The Board is also satisfied that all relevant
facts have been properly developed to the extent possible.
In this regard, pursuant to the October 1996 Board remand,
the regional office, in December 1996 asked the appellant to
complete and return a VA form showing her unreimbursed
medical expenses from April 1994 to May 1995. The appellant
did not respond to the request. Accordingly, the Board will
base its decision on the evidence of record.
I. Background.
The record reflects that the veteran died in December 1993.
In April 1994 the appellant submitted a claim for improved
death pension benefits as surviving spouse of the veteran.
The appellant indicated on the claim that her income
consisted of Social Security benefits of $749.10 per month or
$8,989.20 per year plus annual interest of $417.26 for a
total of $9,406.46 per year.
She submitted a list of various expenses of the veteran's
last illness and burial as well as various medical expenses
for herself during the period from December 1992 to December
1993. She included in the amount of the expenses, amounts
for prescription medicine for the veteran, a physician bill
for the veteran, hospital insurance, an X-ray study and
transportation costs. She also provided a receipt reflecting
that she had paid the funeral home $5,066.26 on February 15,
1994.
The regional office computed the deductible expenses of the
veteran's last illness and burial to be $2,751. It was
indicated that, when that sum was subtracted from the
appellant's gross annual income, her net countable income was
$6,655.46 which exceeded the limit for a surviving spouse
with no dependents of $5,239 that was effective in December
1993. The appellant appealed from that decision.
II. Analysis.
The effective date of an evaluation and award of nonservice-
connected death pension benefits based on a claim received on
or after October 1, 1984, will be the first day of the month
in which the veteran's death occurred if the claim is
received within 45 days after the date of death. Otherwise,
the effective date is the date of receipt of the claim.
38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(c)(3)(ii).
The maximum annual rate of improved death pension for a
surviving spouse without dependents was $5,239 effective as
of December 1993. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23(a).
The maximum rate of improved death pension is reduced by the
amount of the countable annual income of the surviving
spouse. 38 C.F.R. § 3.23(b).
For improved death pension purposes, payments of any kind
from any source are counted as income in the year in which
received unless specifically excluded. 38 U.S.C.A. § 1503;
38 C.F.R. § 3.271.
There will be excluded from a surviving spouse's annual
income amounts equal to amounts paid by the surviving spouse
for unreimbursed medical expenses to the extent that such
amounts exceed 5 percent of the applicable maximum annual
pension rate for the spouse as in effect during the 12-month
annualization period in which the medical expenses were paid.
38 C.F.R. § 3.272(g).
The expenses specified in paragraphs (1) and (2) of this
section which are paid during the calendar year following
that in which death occurred may be deducted from annual
income for the 12-month annualization period in which they
were paid or from annual income for any 12-month
annualization period which begins during the calendar year of
death, whichever is to the claimant's advantage. Otherwise,
such expenses are deductible only for the 12-month
annualization period in which they were paid. Any such
expenses paid subsequent to death but prior to date of
entitlement are not deductible. 38 C.F.R. § 3.272(h).
Amounts paid by a surviving spouse or a child of a veteran
for the veteran's just debts, expenses of the last illness
and burial (to the extent such burial expenses are not
reimbursed under Chapter 23 of Title 38, United States Code)
will be deducted from the income of the surviving spouse or
child. 38 C.F.R. § 3.272(h)(1)(ii).
In this case, as indicated previously, the evidence reflects
that the veteran died in December 1993. The appellant's
claim for improved death pension benefits was submitted in
April 1994.
She indicated on her claim that her income consisted of
Social Security benefits of $749.10 per month or $8,989.20
per year plus annual interest of $417.26 for a total of
$9,406.46 per year.
She submitted a list of various expenses of the veteran's
last illness and burial as well as various medical expenses
for herself during the period from December 1992 to December
1993. The regional office computed the deductible expenses
of the veteran's last illness and burial to be $2,751. This
apparently consisted of sums spent for prescription medicine
for the veteran, physicians' fees for the veteran, X-ray
studies, and transportation costs. The Board has reviewed
the computation of the expenses of the veteran's last illness
as calculated by the regional office and does not find that
she would be entitled to deduction of a sum in excess of
$2,751. She submitted with her April 1994 claim a receipt
from the funeral home reflecting the payment of $5,066.26 in
funeral expenses on February 15, 1994. However, as indicated
in the cited regulation, any burial expenses paid after the
veteran's death but prior to the date of entitlement are not
deductible. Since the appellant's claim in this case was
submitted more than 45 days after the veteran's death, her
date of entitlement would be the date of receipt of the claim
which was after her payment of the funeral expenses. Thus,
those expenses could not be deducted from her countable
income.
When the expenses of the veteran's last illness of $2,751 are
deducted from the appellant's gross annual income of
$9,406.46, her net countable income as of April 1994 was
$6,655.46 that was in excess of the limit of $5,239 for a
surviving spouse with no dependents. Thus, under the
circumstances, it follows that the appellant was not entitled
to improved death pension benefits as of April 1994 based on
excess income. 38 U.S.C.A. §§ 1503, 1541; 38 C.F.R. §§ 3.23,
3.27, 3.272.
The Board notes that, in July 1998 the veteran's award of
improved disability pension was retroactively adjusted based
on the unreimbursed medical expenses for himself and the
appellant submitted on her April 1994 claim in the total
amount of $8,500. This reduced the family countable income
for the period from December 1992 to December 1993 to $5,505
with the result that the veteran had been due $753 per month
for that period instead of $86 per month or a total of $9,036
instead of $1,032 leaving an accrued benefit of $8,004 which
was paid to the appellant.
The Board has carefully reviewed the entire record in this
case; however, for the reasons already set forth, the Board
does not find the evidence to be so evenly balanced that
there is doubt as to any material issue with respect to the
matter on appeal. 38 U.S.C.A. § 5107.
ORDER
Entitlement to nonservice-connected death pension benefits
based on income is denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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